The Associated Press, New York Times, Time, Washington Post, Agence France-Presse, Advance Publications, and others submitted their own amicus brief in the ongoing legal case between theflyonthewall.com and Barclays Capital. They aren't taking a side in the dispute, but they do want the ability to tell others not to re-report "their" facts.

According to the brief, the news orgs believe the hot news doctrine provides "limited but vital protection" for those who put elbow grease into publishing the news. They argue that they're the ones spending time and money doing the research on a piece of news, and that they should get full control over who can republish the facts while the news is still considered timely. (Facts generally are not protected by copyright.)

"Unless generalized free-riding on news originators’ efforts is restrained, originators will be unable to recover their costs of newsgathering and publication, the incentive to engage in the news business will be threatened, and the public will ultimately have fewer sources of original news," reads the brief.

It's not easy being the one who puts in all the work so that everyone else can grab the details for free. And, of course, there are many stories that would never get the full attention they deserve without major news outlets putting in that effort. That's the crux of the news orgs' brief—they want to stay in business so that they can keep reporting the news to the public, and they believe the "hot news" doctrine will help them in that effort.

Note that this is not the same as protecting their work from being plagiarized—current copyright law already protects their specific words. Rather, if one of them breaks news about pigs suddenly learning to fly, they don't want a competitor to see the story in an RSS feed, read the post, and immediately rewrite the facts in new language.

Doing this occasionally is one thing, but "hot news" was developed by courts during World War I when this kind of rewriting became a staple practice for some new competitors. It's even worse when it happens with no attribution.

When everyone's a publisher, is "hot news" practical?

Could hot news protection extend to tweets, Facebook posts, blog posts, and more? The news orgs aren't likely to go after people for a tweet that contains few facts, but the door could be open for that kind of "enforcement."

As Google and Twitter noted in their own brief, how would a court choose a time period during which the facts about the latest Times Square bombing couldn't be reported by others? Further, how would the court fairly enforce such a restriction across the entire Internet? It could target one site at a time—like The Fly—but that hardly stops other news sites, blogs, and social media from repeating the facts at lightning speed across the Internet.

It's not just Google and Twitter who think the concept is impractical in today's Internet world: the Electronic Frontier Foundation argues that the hot news doctrine tramples core principles from the First Amendment, and Duke professor and public domain booster James Boyle has spoken out publicly several times against turning it into federal law.

But some news organizations, even new-media savvy ones like the New York Times, still believe that their business needs hot news protection, and they're willing to fight for the idea in court.

66 Reader Comments

That is a complete misreading of what this law says, in all ways. What this would effect is if, for instance, an Apple Exec shows the WSJ the iPhone 5 in a private review - where no other news org, including bloggers is present, WSJ writes it up, and immediately Gizmodo takes that info, and re-writes it, without reference to the WSJ, more or less pretending it was them who met w/ the Apple Exec.

Which is equally scary to people litigating who owns the news about a hurricane. Apple shows the iPhone 5 to some friendly journalist who writes up a piece about how it's the greatest thing ever. Someone reads that and disagrees with the conclusion that features X,Y,Z are the greatest thing since sliced bread. So they write their article about why the iPhone 5's features are junk...and get sued? So the only news for some appreciable period of time is that the iPhone 5 is great?

Or what if (partisan news source of your choice) uncovers that a president is selling weapons to terrorists, and spins it as 'everything is fine, he's actually selling weapons to freedom fighters'. That's the only word we get to hear about this? Hot news sounds like a propagandists dream come true.

When people hear news, they develop opinions on that news. They can't express those opinions without at least mentioning the news. So now I have to say "WSJ had an article about a scandal. Without revealing what that scandal is, here's what I think..."

And if we make an exemption for opinion, is there any value at all left in the law? Now the boogeyman bloggers rewriting all the news stories just have to say "X Y Z happened. I think Z's a jerk".

These "news" organizations should just stick to the Missing White Woman beat and leave actual journalism to the professionals.

You can't copyright a fact. What next, history book publishers will have to divide up their territory? "I printed a chapter about the Magna Carta in my book last year, so you can't mention it in yours. Phbbt."

Electronic Frontier Foundation argues that the hot news doctrine tramples core principles from the First Amendment

That's exactly right. If the NYT reports "BP stops leak", via their own reporter on the scene, it's an original fact and would be covered under the proposed rule. But then if I tell my co-worker, "The New York Times said that BP stopped the leak", that's my own reporting of a new and different fact, and it is exactly the sort of thing our vaunted freedom of expression principle is supposed to protect.

This issue could be solved, however, by imposing an attribution requirement: if your source is another publication, you have to acknowledge it, even if the words are not the same. If you independently discover the same thing by sending out your own reporters, then there's no problem, even if the words happen to coincide.

That is a complete misreading of what this law says, in all ways. What this would effect is if, for instance, an Apple Exec shows the WSJ the iPhone 5 in a private review - where no other news org, including bloggers is present, WSJ writes it up, and immediately Gizmodo takes that info, and re-writes it, without reference to the WSJ, more or less pretending it was them who met w/ the Apple Exec.

Which is equally scary to people litigating who owns the news about a hurricane.

This is a COMPLETELY different topic then what I postulated. No one could claim exclusive access or reporting of a hurricane, as nearly every news org will send reporters to cover it, in addition to the fact that the National Weather Service publishes Press Releases w/ all the relevant info to everyone.

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Apple shows the iPhone 5 to some friendly journalist who writes up a piece about how it's the greatest thing ever. Someone reads that and disagrees with the conclusion that features X,Y,Z are the greatest thing since sliced bread. So they write their article about why the iPhone 5's features are junk...and get sued? So the only news for some appreciable period of time is that the iPhone 5 is great?

I think your generalization here is quite a reach for a few reasons - first, commentary on the usefulness of said features is no news, it's opinion. Reporting on the existence of such features is news, and if another outlet wants to run the commentary of which you speak, they should do so noting that is is based on reports from a different organisation, done, simple. What would be against this law would be to report on the existence of these features as if you had discovered them yourself, and not read about them from another source. It's not really even that subtle of a distinction.

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Or what if (partisan news source of your choice) uncovers that a president is selling weapons to terrorists, and spins it as 'everything is fine, he's actually selling weapons to freedom fighters'. That's the only word we get to hear about this? Hot news sounds like a propagandists dream come true.

Well, that happened in the 80's, it was called the Iran-Contra scandal, and all these Hot News laws were already in place. Note that the ban is extremely short, and does not prevent other outlets from editorializing on the content, only from portraying that news as collected by their own establishment.

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When people hear news, they develop opinions on that news. They can't express those opinions without at least mentioning the news. So now I have to say "WSJ had an article about a scandal. Without revealing what that scandal is, here's what I think..."

It's a time limited ban, and does not cover attributed editorial content.

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And if we make an exemption for opinion, is there any value at all left in the law? Now the boogeyman bloggers rewriting all the news stories just have to say "X Y Z happened. I think Z's a jerk".

Sure there is - especially in the internet world, where breaking news first matters more then ever to CPMs. And note that this has less then nothing to do w/ suing bloggers - it has to do w/ suing competing news orgs who act as if other people's reporting is their own. Yes, adding Z is a jerk does make the situation different, and it's exactly the insertion of crap like that that people continue to flock to real news orgs as opposed to simply counting on bloggers for their entire picture of reality.

It's also worth noting that reputable news orgs have had this worked out amongst each other for years now - this is not CNN suing ABC or even FOX - they all have contracts in place to cover the sharing of collected info, and regularly exchange footage based on these contracts. What they are after is news orgs who won't play fair, won't enter into licensing deals, and who portray other people's coverage as their own.

These "news" organizations should just stick to the Missing White Woman beat and leave actual journalism to the professionals.

You can't copyright a fact. What next, history book publishers will have to divide up their territory? "I printed a chapter about the Magna Carta in my book last year, so you can't mention it in yours. Phbbt."

This is NOT about copyright - and that distinction is make plain again and again in the relevant articles if you read about the topic at all. And, the ban is short, not perpetual!

Now, you can talk about rumors, which is blogs main currency, and is what makes them different from news sites, and you can even find example where news orgs will say things like 'Entertainment Blog X is reporting that Director Z is leaving Film B after...' When news orgs report on the content of blogs, it's almost always either fully attributed rumor-mongering, or some kind of trend / opinion spotting piece, where they cover 'what is hot on these dozen blogs today.'

In all these cases, no one is stealing news.

As I said, WaPo did this to me a few years back, "stole" my work (I did the detective work and called a few folks to correlate it... same as any newspaper writer) to write a piece. It was UNIQUE to me, and brought a correlation to light that reflected a strong possibility of something happen (that did indeed happen, two weeks later) that was unexpected. 6 hours after my post, WaPo put it in their blog... and then had a fully written story about it the next day. No attribution back to my work AT ALL. Yet I know they read my blog (I had access to the logs showing where page views come from). So flat out, the big news orgs don't do what you suggest they do all the time. They may do it SOME of the time. They may even intend to do it MOST of the time. But they definitely do not do it all of the time.

That sucks, but what you are discussing is not News - at least not till '2 weeks later' when the actual event happened. What you are talking about is an idea, a theory, and that is not covered here. I would venture to guess that you did not expend significant resources to formulate your theory, nor did it require access exclusive access to sources, it was a theory postulated based on publicly available information.

These "news" organizations should just stick to the Missing White Woman beat and leave actual journalism to the professionals.

You can't copyright a fact. What next, history book publishers will have to divide up their territory? "I printed a chapter about the Magna Carta in my book last year, so you can't mention it in yours. Phbbt."

This is NOT about copyright - and that distinction is make plain again and again in the relevant articles if you read about the topic at all. And, the ban is short, not perpetual!

Fine. Not a copyright they're proposing. Call it something else. Call it a "copyblight" if you want. I don't care.

Whatever you want to call it, you cannot claim ownership, even temporarily, of a fact.

I think your generalization here is quite a reach for a few reasons - first, commentary on the usefulness of said features is no news, it's opinion. Reporting on the existence of such features is news, and if another outlet wants to run the commentary of which you speak, they should do so noting that is is based on reports from a different organisation, done, simple. What would be against this law would be to report on the existence of these features as if you had discovered them yourself, and not read about them from another source. It's not really even that subtle of a distinction.

But the entire lawsuit is over opinions - WSJ's analysts look at the stocks, and make an opinion that it's time to buy X stock. WSJ.com says buy. theflyonthewall.com read WSJ.com, and said, "WSJ.com says buy!" WSJ gets up in arms over the matter.

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When people hear news, they develop opinions on that news. They can't express those opinions without at least mentioning the news. So now I have to say "WSJ had an article about a scandal. Without revealing what that scandal is, here's what I think..."

It's a time limited ban, and does not cover attributed editorial content.

If that were the simple facts of the matter, then there wouldn't be a lawsuit. theflyonthewall.com made an editorial commenting on WSJ's article.

They are just blocked from stealing the content and re-writing it just enough to get around copyright law.

1990: Stealing is stealing.2000: Copying is stealing.2010: Rewriting is stealing.

Oh, wonderful.

2020: Free speech/self publishing is stealing.

Being the first to break news is enough, people. I could see an attribution law being made (bloggers must cite sources on "new information" would be an acceptable compromise... breaking new information would require proof if you're doing it yourself, eg. Gizmodo's iphone 4 fiasco) but to block bloggers from writing about current news would effectively end blogging even if people doubt it's enforceable. Imagine news organizations suing bloggers or internet social networks en-masse "RIAA style", forcing bloggers to settle and take their whole site down in perpetuity, or pay millions in "lost profit". The legal departments would bring in more money than the journalists.

So, would this be extended to Letters to the editor as well? Why let citizens discuss news by regular mail either if they didn't do the footwork?

Now, you can talk about rumors, which is blogs main currency, and is what makes them different from news sites, and you can even find example where news orgs will say things like 'Entertainment Blog X is reporting that Director Z is leaving Film B after...' When news orgs report on the content of blogs, it's almost always either fully attributed rumor-mongering, or some kind of trend / opinion spotting piece, where they cover 'what is hot on these dozen blogs today.'

In all these cases, no one is stealing news.

As I said, WaPo did this to me a few years back, "stole" my work (I did the detective work and called a few folks to correlate it... same as any newspaper writer) to write a piece. It was UNIQUE to me, and brought a correlation to light that reflected a strong possibility of something happen (that did indeed happen, two weeks later) that was unexpected. 6 hours after my post, WaPo put it in their blog... and then had a fully written story about it the next day. No attribution back to my work AT ALL. Yet I know they read my blog (I had access to the logs showing where page views come from). So flat out, the big news orgs don't do what you suggest they do all the time. They may do it SOME of the time. They may even intend to do it MOST of the time. But they definitely do not do it all of the time.

That sucks, but what you are discussing is not News - at least not till '2 weeks later' when the actual event happened. What you are talking about is an idea, a theory, and that is not covered here. I would venture to guess that you did not expend significant resources to formulate your theory, nor did it require access exclusive access to sources, it was a theory postulated based on publicly available information.

I'm assuming that you've read the story in question? There may very well have been facts in the story that RGMBill wrote; since I've not read it I can't say one way or the other, and the description given so far here doesn't seem sufficiently detailed to tell us one way or the other.

When everyone's a publisher, News Companies may end up paying more than they do now for information.

chaoswarriorx wrote:

redwall_hp wrote:

To anyone who still thinks it's a good idea, imagine this: Apple releases the iPhone 5. There's a flurry of websites and newspapers running stories about it. The smoke clears, and somehow the Wall Street Journal managed to break the story a fraction of a second before any of the other publications. (I'm ignoring Twitter for the sake of simplicity.) Oops, now the sue all of the websites and newspapers who ran stories on the topic since they have the quasi-intellectual property protection of the story's facts. (I would imagine Apple would not be happy about this, either. After all, how would you feel if some faceless company claimed that they had the exclusive right to publish about something you did?)

That is a complete misreading of what this law says, in all ways. What this would effect is if, for instance, an Apple Exec shows the WSJ the iPhone 5 in a private review - where no other news org, including bloggers is present, WSJ writes it up, and immediately Gizmodo takes that info, and re-writes it, without reference to the WSJ, more or less pretending it was them who met w/ the Apple Exec.

These guys in big media are not in fact completely retarded. I think everybody knows that the content of and facts from a 'Press Conference' do not in anyway fall under this protection.

The issue with "Hot News" currently is that, from my knowledge, it seems like these two scenarios have not been made exclusive from each other, and the scenario at the Press Conference could, in fact, occur.

It's a time limited ban, and does not cover attributed editorial content.

Copyright's a "time limited ban" as well...

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It's also worth noting that reputable news orgs have had this worked out amongst each other for years now - this is not CNN suing ABC or even FOX - they all have contracts in place to cover the sharing of collected info, and regularly exchange footage based on these contracts. What they are after is news orgs who won't play fair, won't enter into licensing deals, and who portray other people's coverage as their own.

1. "...full control over who can republish the facts while the news is still considered timely." does not sound like it has anything to do with *attributions*.

2. "Play fair" and "licensing deals" seems to be code for "media conglomerates working to keep smaller news organizations out of the loop, or crush them entirely. [We offered them the chance to join in at the 'fair' cost of 16.5 million a year, but they turned us down... so now we have to sue them for reporting on event XYZ.]

I'd like to know how they can make the case for "hot news" with a straight face when every single one of the companies involved in this have, at point or another, "stolen" breaking news from a blog and not attributed it, usually dodging the issue by claiming they had their own sources or worse, that the blog itself can be considered a source and aren't protected by "hot news" because they aren't really journalists.

A dying industry needs to wake up and go back to bed. While they are going away, the internet isn't and its time to embrace that no one has a monopoly on information as they once did.

I'd like to know how they can make the case for "hot news" with a straight face when every single one of the companies involved in this have, at point or another, "stolen" breaking news from a blog and not attributed it, usually dodging the issue by claiming they had their own sources or worse, that the blog itself can be considered a source and aren't protected by "hot news" because they aren't really journalists.

A dying industry needs to wake up and go back to bed. While they are going away, the internet isn't and its time to embrace that no one has a monopoly on information as they once did.

People still have great monopolies on information. More importantly, in my opinion, people still have great monopolies on trust.

I think what we'll need here is some sort of depth standard. Journalists deserve to be compensated for work that they do, but we can't have news agencies claiming ownership over surface facts (like the Times Square bombing example so often tossed around).

It's going to turn into some unfortunate approximation like the fair use standard over how accessible the facts were to the general public. And there will have to be some sort of lower bound so that the line "The New York Times is reporting that ACME's CEO is considering the purchase of Initech." does not count as "news theft".

Now, you can talk about rumors, which is blogs main currency, and is what makes them different from news sites, and you can even find example where news orgs will say things like 'Entertainment Blog X is reporting that Director Z is leaving Film B after...' When news orgs report on the content of blogs, it's almost always either fully attributed rumor-mongering, or some kind of trend / opinion spotting piece, where they cover 'what is hot on these dozen blogs today.'

In all these cases, no one is stealing news.

As I said, WaPo did this to me a few years back, "stole" my work (I did the detective work and called a few folks to correlate it... same as any newspaper writer) to write a piece. It was UNIQUE to me, and brought a correlation to light that reflected a strong possibility of something happen (that did indeed happen, two weeks later) that was unexpected. 6 hours after my post, WaPo put it in their blog... and then had a fully written story about it the next day. No attribution back to my work AT ALL. Yet I know they read my blog (I had access to the logs showing where page views come from). So flat out, the big news orgs don't do what you suggest they do all the time. They may do it SOME of the time. They may even intend to do it MOST of the time. But they definitely do not do it all of the time.

That sucks, but what you are discussing is not News - at least not till '2 weeks later' when the actual event happened. What you are talking about is an idea, a theory, and that is not covered here. I would venture to guess that you did not expend significant resources to formulate your theory, nor did it require access exclusive access to sources, it was a theory postulated based on publicly available information.

Are you serious? He did detective work, he interviewed people over the phone, but that's "Not News"? You just completely ignored the part where he did the work and "venture[d] to guess" in contradiction to everything he said.

Combined with Brandon B's examples of big corporate news outlets stealing stories, I challenge you to either apologize, or explain why your position isn't full of shit.

Now, you can talk about rumors, which is blogs main currency, and is what makes them different from news sites, and you can even find example where news orgs will say things like 'Entertainment Blog X is reporting that Director Z is leaving Film B after...' When news orgs report on the content of blogs, it's almost always either fully attributed rumor-mongering, or some kind of trend / opinion spotting piece, where they cover 'what is hot on these dozen blogs today.'

In all these cases, no one is stealing news.

As I said, WaPo did this to me a few years back, "stole" my work (I did the detective work and called a few folks to correlate it... same as any newspaper writer) to write a piece. It was UNIQUE to me, and brought a correlation to light that reflected a strong possibility of something happen (that did indeed happen, two weeks later) that was unexpected. 6 hours after my post, WaPo put it in their blog... and then had a fully written story about it the next day. No attribution back to my work AT ALL. Yet I know they read my blog (I had access to the logs showing where page views come from). So flat out, the big news orgs don't do what you suggest they do all the time. They may do it SOME of the time. They may even intend to do it MOST of the time. But they definitely do not do it all of the time.

That sucks, but what you are discussing is not News - at least not till '2 weeks later' when the actual event happened. What you are talking about is an idea, a theory, and that is not covered here. I would venture to guess that you did not expend significant resources to formulate your theory, nor did it require access exclusive access to sources, it was a theory postulated based on publicly available information.

Are you serious? He did detective work, he interviewed people over the phone, but that's "Not News"? You just completely ignored the part where he did the work and "venture[d] to guess" in contradiction to everything he said.

Combined with Brandon B's examples of big corporate news outlets stealing stories, I challenge you to either apologize, or explain why your position isn't full of shit.

Most people would rather stand rigid, chest back, with their own engorged ego tilted back from their lower groin area and stuck up their ass hole, than admit that they are wrong.

You cannot own a fact. If an individual or organization can, then that's the end of free speech. The easy way to end this once and for all is to start a class-action lawsuit against these news organizations for quoting bloggers, and, of course, for not compensating people they quote in interviews. Keep anti-SLAPP ammunition at the ready, as well, just in case.

You cannot own a fact. If an individual or organization can, then that's the end of free speech. The easy way to end this once and for all is to start a class-action lawsuit against these news organizations for quoting bloggers, and, of course, for not compensating people they quote in interviews. Keep anti-SLAPP ammunition at the ready, as well, just in case.

You cannot own a fact. If an individual or organization can, then that's the end of free speech. The easy way to end this once and for all is to start a class-action lawsuit against these news organizations for quoting bloggers, and, of course, for not compensating people they quote in interviews. Keep anti-SLAPP ammunition at the ready, as well, just in case.

At the same time, there is some merit to the fact that no one is going to do any serious journalism if they can't make a living off it.

I'm not sure a "Hot News" act is the right way to go, but all the people talking about crowdsourcing and blogs are missing the fact that a lot of the information from these sources is often wildly inaccurate and conflicting.

Do we REALLY want a world where people who are already badly informed and make decisions based of what is basically marketing have to rely on twitter and blogs for investigative journalism?(Where in this case investigative might mean inventing a few facts to make your story fit, or just tossing out random crap as fact because hey, who cares it's just my blog).

There needs to be a balance where we don't end up with the mess copyright law has introduced, yet news organizations and journalists are able to make a living without trusting human goodwill...

There needs to be a balance where we don't end up with the mess copyright law has introduced, yet news organizations and journalists are able to make a living without trusting human goodwill...

L.

Good point. Of course, I feel that the balance falls on the side of the idea that the fact itself absolutely CANNOT be copyrighted by anyone, any more than an idea can. The copyright has always lain in the execution. It's why a plotline cannot be copyrighted, but "Harry Potter and the Deathly Hallows" absolutely can. Hence, if the New York Times reports that the Ghostbusters (who are trademarked, but that's another show) have stopped Gozer in Times Square, the story itself is copyrighted, but the facts that make up the story, and the additional fact that NYT has reported it, are not. So it should at least be permissible to do a Boing Boing-style post, with Mark Frauenfelder or Cory Doctorow or Xeni Jardin posting, "NYT sez...(etc)."

And if the Times has a problem with that, they can pound sand, especially since they got caught cutting and pasting the Rolling Stone Gen. McChrystal scoop into a PDF over the weekend.